Brian Rodems lives a short distance from what had been the barn at 39 Murphy Lane. He and the neighbors have done an extraordinary job mobilizing people to oppose what they see as a threat to their neighborhood. Below are the documents they have sent to the Mayor’s office in an attempt to solicit assistance. The central argument is that the majority of the Zoning Board of Appeals are more concerned with facilitating construction than in carrying out the purpose of zoning to protect the character of the neighborhoods.
Below are photos meant to show how the barn was a lovely and integral part of the community before it was torn down along with pictures of the house being built in its place. Also below is an excellent explanation of the issues by Mr. Rodems in his email to the Mayor and the city attorneys along with a letter from an attorney representing the neighbors that lays out the legal issues.
As of this evening they have not heard from the Mayor’s office.
Email To Mayor And Attorneys
From: Brian Rodems  Sent: Friday, April 1, 2016
Subject: Opinion from City Attorney – ZBA Procedures as outlined in City Zoning Code
Mayor Yepsen & City Attorney’s Mr. Izzo and Mr. Deleonardis:
Property owners in this community continue to be placed at a disadvantage by the very board that is entrusted with the enforcement of the Zoning Codes for our city. We are faced with the continued threat of over development or poorly planned development that will have a deleterious impact on our quality of life and the value of our property. It would appear that the members of the ZBA have a predilection to provide support for developers – at the expense of neighborhoods – by loosely “interpreting” the zoning code to favor developers.
A case in point is ZBA Variance #2807.1 – 39 Murphy Lane. One only has to watch the videos from the ZBA proceedings (see City Web Site) to understand the dilemma that we face. During the Feb. 8 meeting (beginning at minute marker 6:58), as well as the subsequent meeting on Mar 21 (watch from the beginning), you will observe:
- The ZBA discovers that the applicant has blatantly disregarded the conditions under which the original (x7) variances were granted, i.e. NO longer a renovation of a barn (and actually tore it down – see attached photos).
- The Chairman, Bill Moore, repeatedly apologizes for the mistake he made in approving the original (x7) variances (that were key to advancing this project).
- Members of the board ask the question – When are we going to finally hold an applicant accountable for NOT following board’s directives and forcing them to adhere to the city zoning codes? In their words – they never have!
- The Vice Chair admonishes the applicant and then looks to find a “compromise” – instead of holding the applicant accountable.
- The Board fails to follow the procedures outlined in the Zoning Code and allows the applicant to go forward with an appeal / modification to a previously granted variance.
Given this evidence, I would like to ask the City Attorney to address the following questions and to draft an opinion with regards to the procedures that the members of the ZBA must follow – as written in the City Zoning Codes:
- Is the ZBA compelled by the City Zoning Code to follow the procedural regulations in the performance of their duties, i.e. as referenced in City Zoning Code, Section 8.5(G)?
For reference, see the ZBA Variance #2807.1 – 39 Murphy Lane. In this case the Applicant is asking the Board to reconsider and modify its prior decision:
- “In order to rehear an appeal previously determined by the ZBA, the following must occur:
- A ZBA member must move to formally rehear the appeal
- A unanimous vote of all ZBA members present must approve the motion to rehear
- The appeal shall be subject to the same notice provisions as an original hearing
- The ZBA may reverse, modify or annul its original decision provided that the ZBA finds that the rights vested in persons acting in good faith reliance upon the reheard order, decision or determination will not be prejudiced thereby
- A unanimous vote of all ZBA members present is required to reverse, modify, or annul its original decision”
- Please see the attached document containing a legal opinion as drafted by an outside counsel, Amy Mele, Esq., who was retained by the property owners adjacent to 39 Murphy Lane property.
2. Is the ZBA compelled by the City Zoning Code to force compliance with a previously approved variance?
For reference, see the ZBA Variance #2807.1 – 39 Murphy Lane. In this case the Applicant was granted (x7) zoning variances, with stipulations attached to the final ruling. In the approved variance application the ZBA outlined explicit requirements and conditions under which the variance was granted and to which the applicant had to comply with.
Once a variance is approved, does this document become legally binding and the conditions under which the variances were approved enforceable under city code?
Once the ZBA issues a ruling on a variance request doesn’t the applicant have to comply with the conditions stated in the variance? And, if the Applicant fails to comply with those stipulated conditions, doesn’t the city have the right to fine the Applicant for damages and/or force them to remediate.